[MichaelL]

Does ASCAP and/or BMI ever just track and pick up the commercials for you – like they should – with no effort on your part?

Last year, BMI paid me for a Bud Light radio spot. No tracking anyone down. No chasing after royalties. Zero effort on my part. It was a nice surprise.

[MichaelL]

…would the PRO’s on MLR recommend a newcomer keep most of their tracks in NON-Exclusive libraries?

My strategy is to keep as much control as possible to remain flexible for the future.

[MichaelL]

I’ve hit the BMI glass ceiling. Tripled my content “on air” and virtually no BMI growth in the last 3+ years. The problem is twofold IMO – BMI’s draconian “terms and practices”

In 2014, BMI altered it “terms and practices” by including a show’s ratings in its royalty calculation. I saw a huge drop from that point forward until 2019. Things picked up as the result of non-TV placements including music used by the Tampa Bay Rays, Universal Theme Park, a Bud Light radio commercial, and “general use” of a 23-year old track in Hong Kong! The last distribution was the best in several years, up about 40% over the quarterly average for 2017- 2019.

[MichaelL]

It may not be so much that the royalty situation is a product of the PRO and library contracts, but that the contracts enable the situation and perhaps insulate the PROs and the libraries from any meaningful action.

[MichaelL]

There has been an ongoing discussion in several threads about PROs, in this instance BMI, not collecting royalties, or perhaps collecting but not distributing royalties to composers. It has been suggested that some kind of legal action be taken against BMI to force payment or that laws be changed, etc. I’m going to try to address several issues here.

First, understand that your relationship with BMI is a non-exclusive license. It is this fact that allows you to direct license your music. Because you have effectively licensed your music to BMI, it would potentially be difficult to argue that BMI is somehow infringing on your copyright unless it is doing something outside the scope of the license, a portion of which reads as follows:

4. Except as otherwise provided herein, you hereby grant to us for the Period:
(a) All the rights that you own or acquire publicly to perform, and to license others to perform, anywhere in the world, in any and all places and in any and all media, now known or which hereafter may be developed, any part or all of the Works

This appears to be the relevant language regarding payment:

6. (a) As full consideration for all rights granted to us hereunder and as security therefor, we agree to pay to you, with respect to each of the Works in which we obtain and retain performing rights during the Period:
(i) For radio and television performances of a Work in the United States, its territories and possessions, amounts calculated pursuant to our then current standard practices upon the basis of the then current performance rates generally paid by us to our affiliated writers for similar performances of similar compositions. The number of performances for which you shall be entitled to payment shall be estimated by us in accordance with our then current system of computing the number of such performances.

Under 6(a)(i), in exchange for the rights that you grant to BMI it agrees to pay you according to “our current standard practices” upon the basis of the then current performance rates. The key phrase here is, “our current standard practices.” This clause gives BMI a lot of discretion to determine what they will and will not track or pay for, like pharmaceutical commercials. It’s just not their “standard practice,” at the moment. The applicable rates are set by the Copyright Royalty board, not BMI.

Section 6(b) states as follows:

Notwithstanding the provisions of subparagraph 6(a), we shall have no obligation to make payment hereunder with respect to (i) any performance of a Work which occurs prior to the date on which we have received from you all of the information and material with respect to such Work which is referred to in paragraphs 2 and 3, or (ii) any performance of a Work as to which a direct license as described in subparagraph 5(c) has been granted by you, your co-writers, if any, or the publishers…

Section 6(b) appears to state that BMI has no obligation to make any payments for performances that you, your co-writers, or your publishers direct license. So, in as much as certain libraries do direct license deals this suggests that BMI is not obligated to pay royalties under those circumstances. Additionally, I recently read a contract from a popular library which basically stated “we do not have to pay you anything for blanket license fees.”

So you have a double whammy. The combination of these agreements is the hole through which Scripps drive the no-royalty truck. The library says we don’t share blanket fees and BMI says we don’t pay for direct licenses. Composers say “How is this even legal?” The answer is that you agreed to it under contract.

Suing the PROs was mentioned in a few threads. Without debating the merits of litigation, BMI’s contract contains an arbitration clause. Here is the relevant language:

21. All disputes of any kind, nature or description arising in connection with the terms and conditions of this agreement shall be submitted to the American Arbitration Association in New York, New York, for arbitration under its then prevailing rules… The award made in the arbitration shall be binding and conclusive on both of us and shall include the fixing of the costs, expenses and reasonable attorneys’ fees of arbitration, which shall be borne by the unsuccessful party. Judgment may be entered in New York State Supreme Court or any other court having jurisdiction.

Potentially, this clause eliminates the possibility of “class action” litigation as mentioned in an earlier thread. Arbitration clauses are a common tactic used to avoid class action suits. But, beyond that, notice that if you lose you are on the hook for costs and BMI’s legal fees. The same situation applies with respect to copyright infringement litigation in federal court (which seems to be waived under BMI’s agreement). Under 17 U.S. Code §?505, if you were to sue BMI and lose the court could order you to pay costs and BMI’s legal fees.

Maybe jdt9517 can put a different spin on this, but its appears that these various royalty issues are a product of the contract terms that composers have agreed to with the PROs and various libraries.

[MichaelL]

I reviewed BMI’s contract. The answers to the questions in this thread and various “HOW CAN THEY GET AWAY WITH THIS?” threads are in their writer agreement. I’ll explain later.

[MichaelL]

Hi @jdt9517,
We’re giving everyone a glimpse at lawyers’ thought process! I agree that a suit may not be time barred. What I am addressing is whether litigation would be economically practical, given the timing of the registration.

Many composers do not bother to register works. They just upload to libraries as soon as the track is complete. If infringement occurs more than 90 days after publication and the work has not been registered that claimant most likely loses access to statutory damages and legal fees. Of course, they can still sue for actual damages, the infringer’s profits and an injunction to stop the infringer’s activity. In a case like this, even with thousands of broadcast performances, it could easily cost more to litigate than would be recovered.

Given that the track was legitimately licensed, and that BMI is not infringing on Art’s work, it seems the issue is a failure of BMI to perform its obligations to Art under his writer agreement. Thus, there is a potential breach of contract claim. Without looking at BMI’s writer agreement, I would be very surprised if there are not choice of forum/venue clauses that might limit any action to arbitration.

[MichaelL]

Hi Art and jdt9517,
Timing of registration is critical. The 90-day window is limited. From the Copyright Office Circular 1: https://www.copyright.gov/circs/circ01.pdf

A copyright owner may be entitled to claim statutory damages and attorneys’ fees in an infringement lawsuit if the work was registered before the infringement began or within three months after the first publication of that work.

In order to have potential access to statutory damages and legal fees you would have had to register the copyright before the alleged infringement, which you did not in this case. In the alternative, you would have had to register the copyright within three months of publication, which would be within three months of the date that you first published the track by offering it for sale or license to the public.

Additionally, in a recent court case, Fourth Estate Public Benefit Corp. v. Wall-Street.com , SCOTUS unanimously held that a copyright registration must have “received final action” from the Copyright Office before a claimant can bring a copyright lawsuit. In other words, under this holding, you cannot initiate a lawsuit based on having filed a registration. The work must be registered.

[MichaelL]

Thanks jdt9517 but I believe (and MichaelL will correct me if I’m wrong), it takes $75k to bring a copyright claim to a federal court. I actually did think about taking it to small claims court though.

Hi Art, That’s not correct. The $75K you mention is the amount in controversy requirement for cases being brought under diversity jurisdiction. For example, residents of two different states might bring state tort claims in federal court under diversity jurisdiction. In contrast, copyrights are governed by federal law. Federal courts have federal question jurisdiction over copyright claims. There is no amount in controversy requirement for cases brought under federal question jurisdiction. That requirement was eliminated in 1980. It is the potential cost of litigation that is prohibitive.

jdt9517 brings up an interesting point. In your case, however, the production company paid a license fee to use your music. Through that license, you have given them permission to use your music within the limits of the license. Assuming that the networks and cable channels pay some kind of blanket fee to the PROs, the question is whether or not BMI and Numerator are doing their job. Neither BMI nor Numerator are using your music, so they are not infringing on your copyright. It seems that the fundamental issue between you and BMI is contractual, whether or not it is upholding its obligation (if such exists) to use its best efforts to collect royalties on your behalf.

I do agree with jdt9517 regarding the importance of registering your copyrights. But, be aware that timing is everything. If you wait too long you can severely limit potential damages and lose the ability to collect legal fees. Many infringement claims are never made for this reason. The movement for a “small claims” copyright court is not about the amount in controversy, but rather about making pursuing claims and enforcing copyrights “affordable.”

[MichaelL]

Thanks for the info @Strat 56. You left out one factor, not that it makes the reality any less grim. How many tracks did you upload in order to generate 69 downloads? No matter how you slice it, your music was devalued by a huge ratio.

[MichaelL]

MichaelL will be nominated to take Judge Judy’s place when she retires.

Actually, she’s not retiring. I have it on good authority that she’s going to be part of Mike Bloomberg’s Cabinet, unless he nominates her to replace RBG.
😀

[MichaelL]

if someone could just tell me how to get rich in the production music biz, I’d really appreciate it.

Easy. Sell a “How to Make it in the Production Music Biz” course. 😉

I suggest approaching “How to Courses” that make promises with caution and a fair amount of skepticism. I’ve watched a few of the videos from one of the authors mentioned in this thread and I can tell you that the legal advice offered in one of those videos is flat out wrong and potentially harmful. The advice offered could make the difference between being able to enforce your intellectual property rights and potentially losing thousands of dollars or being prevented protecting your rights altogether.

[MichaelL]

So,why do SK care about Discovery’s plans if they already support this practice?

It would seem that any library offering gratis deals could end up losing as much money as composers. One would hope that JP, SK, and others are fighting this along with composers.

[MichaelL]

Discovery, if they win this battle will get our music, the libraries supplying them will get their up front fee, we will earn $0.

What about libraries whose model is to provide music gratis for the purpose of collecting publishing revenue on the backend, who have been supplying Discovery? This would potentially have a negative ripple effect across the board, causing further harm to composers, beyond just Discovery networks.

[MichaelL]

I learned that you have to give ’em what they need, all done & tied-up in a pretty package. It increases your chances

Truer words were never spoken. 😀

[Author]

Posts